PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
YOUR USE OF THE SITE AND/OR THE SERVICE, OR BY CLICKING “I ACCEPT” IF PRESENTED WITH THIS TOU IN A CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT NATIONAL POSITIONS MAKES FROM TIME TO TIME.
2. Terms of Service. By clicking “I ACCEPT” and engaging National Positions to provide the Marketing Services, you represent that you have read and consent to the Terms of Service in addition to this ToU. National Positions may revise the Terms of Service at any time, and the new versions will be available on the Site and/or Service. If at any point you do not agree to any portion of the Terms of Service, you must immediately notify National Positions that you would like National Positions to stop providing you the Marketing Services.
4. ToU Updates. National Positions will revise this ToU as the Site and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site and/or Service. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
5. Termination of Service. National Positions reserves the right to deny service to any person at National Positions’ sole and absolute discretion. The Service is offered with the understanding that National Positions may terminate any Account (defined below) registered to you and/or National Positions provision of the Service and/or Marketing Service at any time, for any reason or no reason, including without limitation for any violation of this ToU.
6. Accounts and Security.
6.1. Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.
6.2. Account. To access the Service, you must have an account (“Account“). You can create an Account by completing the registration process on the Site, through National Positions directly or as otherwise specified herein.
6.3. Marketing Data. We will provide certain data regarding the Marketing Services you receive from time to time (“Marketing Data“) through your Account. You agree to use the Marketing Data only in association with assessing the Marketing Services and the marketing of your website and for no other purpose.
6.4. Account Security. Maintaining Account security is very important. You are entirely responsible for maintaining the confidentiality of the Account password. You agree to notify National Positions immediately if you believe that an Account password may have been compromised.
6.5. Account Sharing or Transfers. You may not share or transfer any Account. You may not disclose your password to anyone else.
6.6. Cancellation by You. You have the right to cancel any Account registered to you at any time. You may cancel any Account registered to you by following the instructions on the Site or by contacting National Positions directly.
6.7. Effect of Account Termination or Cancellation. If you voluntarily terminate an Account or allow that Account to lapse by ceasing the Marketing Services, you may reactivate that Account by subscribing to additional Marketing Services at any time. Accounts terminated by National Positions for any type of abuse, including without limitation a violation of this ToU, may not be reactivated for any reason. If your Account is cancelled, your access to the Service will automatically be terminated as well.
7. Restrictions and Conditions of Use.
7.1. Use of Site and Service. National Positions permits you to view and use a single copy of the Site and/or the Service solely for the purpose of reviewing information provided to you as part of the Marketing Services. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site and/or the Service, including the Marketing Data. National Positions reserves the right to add or remove information, content or Service from the Site at any time at its sole discretion.
7.2. No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Site and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
7.3. Misuse of Site and/or Service. You may not connect to or use the Site and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site and/or Service or otherwise attempt to disrupt the Site and/or Service or any other person’s use of the Site and/or Service; or (b) attempt to gain unauthorized access to the Site, Service, Accounts registered to other users, or the computer systems or networks connected to the Site and/or Service. Furthermore, you may not use the Site or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Site and/or Service, (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding National Positions and/or the Service; or (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
7.4. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service not directly provided to you through the Service, including without limitation information of other account holders, including other user’s Marketing Data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.
8.1. Links from the Site. The Site may contain links to websites operated by other parties. National Positions provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of National Positions, and National Positions is not responsible for the content available on the other sites. Such links do not imply National Positions’ endorsement of information or material on any other site and National Positions disclaims all liability with regard to your access to and use of such linked websites.
8.2. Links to the Site. Unless otherwise set forth in a written agreement between you and National Positions, you must adhere to National Positions’ linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with National Positions’ and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with National Positions, (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site, and (iv) National Positions reserves the right to revoke its consent to the link at any time and in its sole discretion.
9. Intellectual Property.
9.1. Trademarks. National Positions and the National Positions logo are trademarks/service marks of National Positions. Unauthorized use of any National Positions trademark, service mark or logo may be a violation of federal and state trademark laws.
9.2. Copyright. The Site and the Service and the content made available through the Site and the Service, including the Marketing Data, are protected by U.S. and international copyright laws. Except for your use of the content in connection with the Service to which we have the appropriate licensing rights or as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Site, Service or Marketing Data, or individual sections of the content, design or layout of the Site without National Positions’ express prior written permission.
10. Location. The Site and the Service are operated by National Positions in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
11. Children. The Site and the Service are not directed toward children under 13 years of age nor does National Positions knowingly collect information from children under 13 or allow them to create an Account or access Account features. If you are under 13, please do not submit any personally identifiable information to National Positions.
12. DISCLAIMER OF WARRANTIES.THE SITE, SERVICE AND MARKETING DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NATIONAL POSITIONS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE AND/OR SERVICES OR THE PERFORMANCE OF THE SITE AND/OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, SERVICE AND/OR MARKETING DATA IS AT YOUR SOLE RISK. NATIONAL POSITIONS DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE OR SERVICE WILL BE SECURE; THAT MARKETING DATA YOU RECEIVE THROUGH THE SITE AND/OR SERVICE WILL BE ACCURATE, CORRECT, COMPLETE OR FREE OF DEFECTS; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADDITIONALLY, NATIONAL POSITIONS SPECIFICALLY PROVIDES NO WARRANTY OR GUARANTY OF ANY KIND THAT (I) YOU OR YOUR SITE WILL RECEIVE ANY TYPE OF GUARANTEED BENEFIT FROM THE USE OF THE SERVICES; OR (II) YOUR USE OF THE SERVICES WILL INCREASE OR IMPROVE THE TRAFFIC OR PLACEMENT OF YOUR SITE, THE TRAFFIC QUALITY TO YOUR SITE, OR REVENUES DERIVED THEREFROM.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
13. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.TO THE MAXIMUM EXTENT PERMITTED BY LAW, NATIONAL POSITIONS, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES“) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, THE SERVICE AND/OR MARKETING DATA, EVEN IF NATIONAL POSITIONS AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF NATIONAL POSITIONS OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of National Positions and its affiliates shall be limited to the fullest extent permitted by law.
14. Indemnification. You agree to indemnify, defend and hold National Positions and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Site and/or the Service or any breach by you of this ToU or any other policies that National Positions may issue for the Site and/or Service from time to time.
15. Governing Law; Jurisdiction. This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 18 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles County, California and you agree to submit to the personal jurisdiction and venue of such courts.
16. Binding Arbitration.
16.1. Arbitration Procedures. You and National Positions agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim“), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules“) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.
Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and National Positions may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND NATIONAL POSITIONS WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
16.2. Location. The arbitration will take place in your hometown area if you so notify National Positions in your notice of arbitration or within ten (10) days following receipt of National Positions’ arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
16.3. Limitations. You and National Positions agree that any arbitration shall be limited to the Claim between National Positions and you individually. YOU AND NATIONAL POSITIONS AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
16.4. Exceptions to Arbitration. You and National Positions agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or National Positions’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
17.1. ToU Revisions. This ToU may only be revised in a writing signed by National Positions, or published by National Positions on the Site.
17.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and National Positions as a result of this ToU or your use of the Service.
17.3. Assignment. National Positions may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without National Positions’ prior written consent, and any unauthorized assignment by you shall be null and void.
17.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
17.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
17.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
17.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: National Positions, Inc., 5012 Chesebro Road, Suite 200, Agoura Hills, California, 91301, ATTN: CEO.
17.8. Equitable Remedies. You hereby agree that National Positions would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
17.9. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.